[nfbwatlk] FW: Diabetics Confront a Tangle of Workplace Laws

[Lauren Merryfield]

Hi,
One of the drivers for paratransit in Omaha, Nebraska, was taken off the 
force and given an office job which she didn't like nearly as well.  The 
reason:diabetes.  No matter that she was managing it.
thanks
Lauren
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----- Original Message ----- 
From: "Nightingale, Noel" <Noel.Nightingale at ed.gov>
To: <nfbwatlk at nfbnet.org>
Sent: Thursday, January 04, 2007 8:39 AM
Subject: [nfbwatlk] FW: Diabetics Confront a Tangle of Workplace Laws


> since the NFB of Washington is trying to be a trend setter in converting
> us all to diabetes, I thought many of you would find this article of
> interest!
>
> -----Original Message-----
> From: owner-justice at jfanow.org [mailto:owner-justice at jfanow.org] On
> Behalf Of Justice For All Moderator
> Sent: Wednesday, January 03, 2007 7:50 PM
> To: justice at jfanow.org
> Subject: Diabetics Confront a Tangle of Workplace Laws
>
> Diabetics Confront a Tangle of Workplace Laws  Costs of a Crisis
>
> December 26, 2006
> By N.R. Kleinfield
>
> John Steigauf spent more than a decade fiddling with the innards of
> those huge United Parcel Service trucks until an icy day two years ago
> when the company put him on leave from his mechanic's job. A supervisor
> escorted him off the premises.
>
> His work was good. He hadn't socked the boss or embezzled money.
> It had to do with what was inside him: diabetes.
>
> U.P.S. framed it as a safety issue: Mr. Steigauf's blood sugar might
> suddenly plummet while he tested a truck, causing him to slam into
> someone.
>
> Mr. Steigauf considered it discrimination, a taint that diabetes can
> carry. "I was regarded as a damaged piece of meat," he said.
> "It was like, 'You're one of those, and we can't have one of those.' "
>
> With 21 million American diabetics, disputes like this have increasingly
> rippled through the workplace:
>
> A mortgage loan officer in Oregon was denied permission to eat at her
> desk to stanch her sugar fluctuations, and eventually was fired.
>
> A Sears lingerie saleswoman in Illinois with nerve damage in her leg
> quit after being told she could not cut through a stockroom to reach her
> department.
>
> A worker at a candy company in Wisconsin was fired after asking where he
> could dispose of his insulin needles.
>
> In each instance, diabetics contend that they are being blocked by their
> employers from the near-normal lives their doctors say are possible. But
> the companies say they are struggling, too, with confusion about whether
> diabetes is a legitimate disability and with concern about whether it is
> overly expensive, hazardous and disruptive to accommodate the illness.
>
> The debate will probably intensify. The number of diabetics in America
> swelled by 80 percent in the past decade. Experts say the disease is on
> its way to becoming a conspicuous fact of life in the nation's labor
> force, raising all sorts of issues for workers and managers.
>
> Even an outspoken advocate for diabetics like Fran Carpentier, a Type 1
> diabetic and a senior editor at Parade magazine, understands the
> implications for business. "Knowing what it's like to live with the
> disease hour by hour, day by day, I wonder if I owned my own company if
> I would hire someone with diabetes," she said. "I'm being bluntly
> honest. And it kills me to say this."
>
> Doctors, though, say that with improved medications and methods of
> self-testing blood sugar, most diabetics can do almost any job if they
> properly manage their illness. Yet myths about the disease persist,
> advocates say, leading many companies to shun diabetic employees.
>
> "It's not all about ignorance, but if I can get rid of ignorance, I can
> get rid of a lot of discrimination," said Shereen Arent, the director of
> legal advocacy for the American Diabetes Association.
>
> Part of the confusion is a byproduct of the disease itself, a capricious
> illness of elevated, damaging levels of sugar in the blood. Type 1 is a
> malfunction of the immune system that usually appears in childhood,
> while the far more prevalent Type 2 is closely associated with obesity
> and inactivity. Many people with diabetes will face withering
> complications like blindness, amputations and heart disease. Others will
> not.
>
> For some, particularly insulin users prone to the abnormal drops in
> blood sugar known as hypoglycemia, the illness can cause dizziness,
> fainting or muddled judgment. Doctors, however, say those constitute a
> tiny number of readily identifiable cases.
>
> Nonetheless, the risk of plunging blood sugars has fueled a longstanding
> reluctance to employ diabetics in jobs like those of truck driver or
> police officer, if they are on insulin. Until this summer, the National
> Fire Protection Association cautioned against making it too easy for
> even non-insulin-dependent diabetics to become firefighters. Now the
> association recommends an individual assessment.
>
> Federal law bars diabetics from joining the armed services and prevents
> diabetics on insulin from becoming commercial pilots.
>
> Innumerable diabetics, though, are engaged in more mundane jobs
> uninvolved in matters of life and death. For these people, secretaries
> and factory workers and programmers, a "reasonable accommodation," like
> permission to eat at one's desk or to be excused from fluctuating
> shifts, can make the difference in whether they can function.
>
> When disputes can't be resolved, the cases often land in court or before
> the Equal Employment Opportunity Commission. The commission, which
> enforces the Americans With Disabilities Act of 1990, says
> diabetes-related complaints have been on the rise, one of the few
> conditions generally showing an increase in complaints.
> Diabetes accounts for nearly 5 percent of the 15,000 annual allegations
> that the commission gets under that act, trailing only back impairment,
> other orthopedic injuries and depression.
>
> Often the courts are of scant help in bringing clarity. Mr.
> Steigauf has spent two years trying to thread his way through the
> disability discrimination law. The federal law can be fuzzy, for it
> mentions no illness or handicap by name but supplies a legal test under
> which plaintiffs must usually demonstrate that a "major life activity,"
> like walking or vision, is "substantially limited."
>
> This is easy enough for anyone who has lost sight or a limb. But the
> restrictions of diabetes are often invisible. Diabetics thus can find
> themselves teetering on a balance beam, needing to prove they are
> disabled enough to fit under the law but not so impaired that they can't
> do a job.
>
> Judges in nearly identical cases have ruled in completely opposite ways,
> leaving diabetics bewildered and businesses unsure what, if anything,
> they should do. While some courts, for example, have held that the
> eating restrictions diabetics face satisfy the substantial limitation,
> others have disagreed.
>
> "Usually the battle is over that word, 'substantially,' " said Craig A.
> Crispin, an Oregon employment lawyer. "If you say the person is disabled
> because of the impact on eating, the other side will say: 'Hey, look,
> she's eating a sandwich. Where's the disability?' "
>
> Seeking Accommodations
>
> The quarrels are as varied as working life: a musician rejected for a
> cruise ship's cabaret band, baggage handlers and plane cleaners fired by
> an airline, a blackjack dealer dismissed by a casino.
>
> The American Diabetes Association fields about 100 calls a month about
> workplace tussles like these. Many of them revolve around
> accommodations, though the changes sought tend to be modest:
> predictable hours, a place to test blood, freedom to snack when sugars
> get unbalanced.
>
> Companies often cite workplace safety as their paramount concern, though
> there is little hard evidence to suggest that diabetics are a risk.
>
> In one case in 2002, ConAgra Foods withdrew a job offer to Rudy
> Rodriguez at a Texas baked bean plant after a physical suggested that
> his Type 2 diabetes was so out of control that he was a hazard. Mr.
> Rodriguez had performed fine as an interim laborer, but the examining
> doctor declared there was nowhere he could safely work "outside of a
> padded room where he could even then fall and break his neck from
> dizziness or fainting."
>
> An appeals court found otherwise and held that ConAgra had violated the
> law. The case was settled, and Mr. Rodriguez now works for a printer.
>
> "Some people who have a problem with hypoglycemia should not be doing
> public safety-type jobs," said John W. Griffin Jr., a lawyer from Texas
> with Type 2 diabetes who handles discrimination cases.
> "But I guarantee you that that baked bean factory was not public
> safety."
>
> There has been other progress for diabetics: the San Antonio Police
> Department's barring of diabetics on insulin was struck down.
> Insulin-using diabetics in good control of their illness can get private
> pilot's licenses.
>
> In the lingerie saleswoman's case, Sears agreed to a consent decree
> awarding the woman $150,000 and stipulating that the store train
> supervisors about disability discrimination.
>
> Employers, however, prevail in a vast majority of cases (many are
> settled). It is hard even to get lawyers to pursue complaints since
> prejudice is tricky to prove. Establishing discrimination has become
> harder since 1999, when the Supreme Court held that if a disability can
> be corrected with medicine or things like prostheses, it is not
> necessarily protected. Advocates for the disabled say the ruling warped
> the intent of Congress.
>
> Ruth Colker, a law professor at Ohio State University who studies
> disability discrimination, said that very few working people with
> diabetes now find themselves guarded by the law.
>
> Judges, in fact, have deemed these diabetics not disabled: a Maine store
> manager who had trouble walking because of poor circulation, and a New
> York security guard without vision in one eye and declining vision in
> the other who had four episodes of hypoglycemia in two years.
>
> In some instances, employers have said they took action against an
> employee because of diabetes, but the court still found that the worker
> was not disabled and threw out the case.
>
> "There's not a remedy for every wrong," said David A. Copus, a lawyer
> who represents employers and specializes in disability issues. "There
> are employers who don't like ugly people. They're not protected by the
> law."
>
> Mr. Copus said he was not unsympathetic. His father had diabetes; it was
> very debilitating.
>
> Wary of bad outcomes, many diabetics conceal their illness on the job.
> Brian T. McMahon, a professor at Virginia Commonwealth University who
> studies workplace discrimination, said: "You get to the question of
> whether or not to disclose you have diabetes. Most people opt not to,
> for they fear: Am I inviting more trouble?"
>
> Figuring Employer Costs
>
> There was a time, four or five decades ago, when you wouldn't find one
> diabetic on the entire floor of a factory. Now, Type 2 diabetics are
> commonplace. It is not only the ascendancy of the disease, but also the
> fact that a condition once considered a corollary to old age is striking
> people sooner, catching them long before retirement. And this comes as
> companies are already struggling to balance productivity in the
> workplace with soaring medical costs.
>
> To understand the brutal math of diabetes, all a business has to do is
> consult the Web site diabetesatwork.org, set up by the government to
> furnish advice on addressing diabetes in the workplace. One of its tools
> is a calculator that uses rough assumptions to suggest what costs might
> be involved.
>
> Businesses plug in the number of employees, the tally is multiplied by
> 8.2 percent (a slightly dated national prevalence rate for diabetes),
> then that figure is multiplied by $13,243, an estimate for yearly
> medical costs of a diabetic. Voil*: the price tag of diabetes. It is a
> burden more than five times that of workers without diabetes.
>
> Ron Z. Goetzel, a vice president for Thomson Medstat, which analyzes
> health care costs for businesses, said that if absenteeism and
> productivity losses are added, diabetes ranks third among major
> conditions as an economic cost to employers, after heart disease and
> hypertension.
>
> Companies have only started to reckon with this, and with the disease's
> ancillary concerns. Even if advocates say safety is rarely a factor,
> companies argue they cannot take chances with some types of workers,
> like school bus drivers or even pizza deliverers.
>
> Concessions may seem small  for example, granting a bank teller more
> frequent breaks  but many employers contend that if rules bend for one
> person, then that breeds resentment among other employees. Co-workers
> cannot see the diabetes, and if an employer gives preferential treatment
> to a diabetic worker, it cannot legally tell other workers it is because
> of the diabetes.
> Companies feel that indulging all diabetics trivializes the meaning of
> disability and of fairness.
>
> "It comes down to how many extra points do I give you," said William J.
> Kilberg, a Washington employment lawyer. "Why is everybody a victim?"
>
> He said too many people who are not disabled demand special favors. "I
> mean, I wear eyeglasses," he said.
>
> In addition to the threat of a suit under federal or state disability
> law, businesses must grapple with the Family and Medical Leave Act,
> which requires them to grant unpaid leave to ill workers. That can
> create scheduling difficulties.
>
> "This whole area gets complicated, because the medical leave act can
> mean employees absent from the workplace for extended periods," said
> Stephen A. Bokat, general counsel for the United States Chamber of
> Commerce. "That bothers employers even more than an employee needing a
> half-hour during the day to administer some insulin."
>
> Health care consultants urge companies to become proactive, try to use
> tools like wellness programs to forestall diabetes' claim on their
> workers and install disease management programs to improve existing
> cases. And many do. Companies dangle $100 incentives (though more often
> a mug or a T-shirt) if an employee submits to a health assessment or
> accepts a phone call from a health coach.
>
> But getting participation is hard. And the economic worth of these
> undertakings to a business is difficult to gauge with a progressive
> disease like diabetes. Sometimes the evident benefits of in-house health
> programs are years down the road, when an employee a business invested
> in may well be working elsewhere.
>
> When Safety Comes First
>
> John Steigauf's fellow mechanics called him "Flunky." The name caught on
> after Mr. Steigauf gave advice to a prickly supervisor, who thundered,
> "I'm not going to let some flunky mechanic tell me how to do my job."
> Mr. Steigauf, 47, wanted it embroidered onto his uniform. Supervisors
> said forget it.
>
> He joined United Parcel in Minneapolis in 1991, turning wrenches from
> the start. Five years ago, he learned that he had Type 2 diabetes.
> Though it often goes with being overweight, he had a wide receiver's
> build: 6-foot-2, 193 pounds. But his mother had diabetes.
>
> He was put on pills and watched his diet, abandoning his cherished hot
> chocolate. Yet his blood sugar remained high. If it didn't drop, he
> would need insulin. That sent fear pumping through him.
>
> U.P.S. requires mechanics, like its interstate drivers, to hold a
> commercial driver's license and to be cleared to drive out of state so
> they can road-test trucks. In reality, mechanics could go weeks without
> leaving the yard, but those were the rules. And at the time, federal
> officials did not grant interstate licenses to insulin-using diabetics.
>
> They did dispense a few exemptions. But Mr. Steigauf, who started using
> insulin only in 2004, stood no chance. The requirement was to have
> driven safely while on insulin for three years.
>
> So Mr. Steigauf tried starving himself, slicing off 30 pounds. It made
> him crabby, fatigued and so thin "that if I stuck my tongue out, I
> looked like a zipper."
>
> His blood sugars did not budge. But after he took insulin, his diabetes
> settled down almost at once.
>
> Later in 2004, he had to have a physical to renew his commercial
> license, a test he could no longer pass. Minnesota did not have the
> three-year rule, and since he had never had a hypoglycemic episode or
> other problems, Mr. Steigauf got an exemption to drive within the state.
> Given that he didn't even leave the county while road-testing trucks, he
> hoped that would be good enough.
>
> It wasn't. For consistency, U.P.S. wanted all its mechanics to be
> certified to drive from state to state, whether they needed to or not.
> So Mr. Steigauf was sent home on disability, even though he felt fine.
>
> Norman Black, a U.P.S. spokesman, said the company had always intended
> to find Mr. Steigauf another position. He said the company did not
> discriminate but was passionate about safety.
>
> Studies tracking accident rates of diabetics are inconclusive; some
> indicate worse outcomes, others don't. But either way, Mr.
> Steigauf's direct supervisor at the time, Dan Welke, said he thought the
> company had gone too far, that somebody else could road-test the trucks
> repaired by Mr. Steigauf.
>
> "It just seemed ridiculous," Mr. Welke said.
>
> Mr. Steigauf also had trouble making sense of this. When his diabetes
> raged out of control, it had been all right to fix trucks. Now, with the
> illness under control, it wasn't.
>
> When he spoke to someone in human resources, Mr. Steigauf said he was
> told that he would never come back. The notion that he was a human
> tinderbox punctuated his interactions. "I'd be told that I could pull a
> tractor up to a fuel pump and pass out and the thing would explode," he
> said. "I was like a grenade and was going to kill people."
>
> At home in Bloomington, Minn., where Mr. Steigauf's tidy ranch is
> bordered by a soup*on of lawn, he, his wife, Dawn, their twin daughters
> and their severely autistic son struggled on a weekly disability check
> of $431, about half his old pay.
>
> To keep going, he did odd jobs. Friends at U.P.S. dug into their
> pockets. The family cut one another's hair and skipped sending Christmas
> cards.
>
> Finally, Mr. Steigauf asked U.P.S. to excuse him from interstate driving
> as a "reasonable accommodation" under disability law.
> After all, he had left the state for U.P.S. only once in 13 years.
> Some of his colleagues, he found out, did not even have commercial
> driver's licenses.
>
> But U.P.S. refused, saying he was not disabled under discrimination law,
> and thus not entitled to an accommodation.
>
> So, in early 2005, he filed a complaint with the Equal Employment
> Opportunity Commission and waited, interned in his house, as if he had
> evaporated  all the while collecting disability from a company that said
> he was not disabled.
>
> After seven months, U.P.S. offered him a lower-paying job, fixing
> trailers. He could not touch an engine or drive. But he took it while he
> battled for his former position.
>
> Then he had some luck. Federal officials changed their rules on
> interstate licenses and Mr. Steigauf qualified for a waiver, allowing
> him to return to his old job. He is expected to start within a month or
> so.
>
> This fall, the E.E.O.C. concluded that he had been discriminated against
> and that U.P.S. owed him relief. U.P.S. said it would contest the
> decision.
>
> Mr. Steigauf is still bitter, not toward U.P.S. itself, but toward the
> way he believes it treats diabetics. Even now, he feels singled out.
>
> "I've had unloaders at work say to me, 'Are you that diabetic guy?' " he
> said. "I don't know what they mean. Nothing? Or, 'You shouldn't be
> working here'?"
>
> To keep his exemption, he must obey a complicated protocol to show the
> Federal Motor Carrier Safety Administration that he remains fit. Every
> three months, he has to report how much he drives and his sugar levels.
> If he has an accident, even if someone rams his car while he's in a
> movie, he has two days to alert the government. He has seven days to let
> the government know if he has a new car or a new phone number.
>
> "The exemption adds to the discrimination," he said one afternoon at
> home. "It constantly reminds me that I'm different."
>
> His children skittered through the room.
>
> "You become a show dog," he said. "I fix engines. I don't want to be a
> show dog."
>
> Source: New York Times
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